What does the NSA need if it wants to spy on you? Even before legal permission, there’s the basics: electricity to run its computers and water to feed the servers that stores the reams of data they acquire. Enterprising state legislators in six states have seized upon this almost-too-obvious insight, and used it to draft legislation that would quite literally turn off the NSA’s lights in their states.
This might seem like a good idea to NSA critics unhappy with President Obama’s reform proposals, but the constitutional theory it depends on is profoundly dangerous. It poses a serious threat to that liberal touchstone, a federal regulatory and welfare state equal to the problems of growing corporate power and poverty.
Ultimately, this proposal to depower the NSA reveals that there’s only so much that can be accomplished by right-left coalitions. Unless each side can agree to abandon tactics that threaten the other’s sacred cows, the members of these coalitions must constantly be on guard against the man standing behind them waiting to stick a knife in their back.
Turning Off The Lights
Each of the six states (Kansas, Indiana, Missouri, Washington, Oklahoma, and California) base their proposals onmodel legislation developed by the OffNow coalition, a group organized by the radically libertarian Tenth Amendment Center. So too will legislators in the next three states (Michigan, Arizona, and Utah) that plan to propose lights-off legislation. So OffNow, and by extension the Tenth Amendment center, is more-or-less running the show here.
How does the legislation work? Basically, it prohibits any state entity and many corporations from:
Provid[ing] services, or participat[ing] or assist[ing] in any way with the providing of services to a federal agency, federal agent, or corporation providing services to the federal government which is involved in the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.
Elsewhere, the legislation provides that any corporation “that provides services to or on behalf of this state” which violates this prohibition “shall be forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state.” So if a state’s utilities — electricity, water, sewage and so forth — are owned by the state, they are forbidden from providing any service to the NSA. And if a state’s utilities are privately owned, they must choose between cutting off service to the NSA or permanently losing their ability to do business with the state.
In most states, this would be largely symbolic: the NSA doesn’t have installations everywhere. But both Washingtonand Utah house significant NSA facilities, and it would actually be quite painful for the agency to move them.
Wielding state power over industry to shut down federal surveillance is a weirdly cross-ideological idea. It combines conservative/libertarian disdain for the federal government with liberal enthusiasm for regulation to address both sides’ concerns about NSA metadata collection. That’s why in the two blue states with this legislation, Washington andCalifornia, the bills are cosponsored by a Democrat and a Republican.
But progressives excited by the bill should cool it. Much of this bill is unconstitutional, and many of the parts that remain should be.
The Power To Destroy
The bill is rooted in a theory that, in James Madison’s words, would “speedily put an end to the Union itself.” More immediately, it could empower conservative state lawmakers to cut off Medicare, Medicaid or Social Security, to frustrate civil rights enforcement or even to prevent federal law enforcement from investigating criminals.
The Tenth Amendment Center is one of the leading proponents of “nullification,” an unconstitutional theory which claims that states can unilaterally invalidate federal laws simply by passing their own law claiming that the federal provision is invalid. Yet their proposal to cut of water and power to the NSA rests on a slightly different constitutional theory than pure nullification. Under something known as the “anti-commandeering doctrine,” the Supreme Court generally does not permit the federal government to command a state to take a particular action. Thus, for example, if the federal government wants to criminalize marijuana, then it can order federal agents to arrest marijuana users, or it can encourage states to prosecute marijuana users by offering them federal funds if they do so, but it cannot simply order a state to prosecute someone the state does not wish to prosecute. Washington and Colorado get to have their own drug laws and their police force is under no obligation to enforce federal law.
Apply this rule to the NSA, and it follows that the federal government cannot force a state to have its own domestic spying program, or to loan its own agents to the NSA. If the federal government wants to engage in surveillance, it must use its own money and its own officers to do so unless a state voluntarily agrees to provide assistance.
But what if a state orders its state-owned power company to deny electricity to the NSA? Or if the state refuses to contract with any company that also provides basic services to the federal government? On the surface, these decisions seem to be covered by the anti-commandeering doctrine as well. Why should the federal government be allowed to direct the state’s business relations any more than it directs its police force?
Chief Justice John Marshall provided a really good answer to this question nearly two centuries ago. In the landmark case of McCulloch v. Maryland, the state of Maryland attempted to tax a federally chartered bank. Marshall wrote for a unanimous Court to explain why state taxation of federal entities was not allowed. “[T]he power to tax involves the power to destroy,” he explained, and “the power to destroy may defeat and render useless the power to create” the bank that the U.S. Constitution entrusted to the federal government. More recent Supreme Court decisions have explained that states may not enact laws that “stand . . . as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
If the power to tax includes the power to destroy, so too does the power to cut off water, power and other essential services to a federal agency such as the NSA. Federal offices could not possibly manage the kind of record keeping and communications necessary to operate in a modern society without access to electricity. Indeed, the OffNow coalition’s website is quite explicit about the fact that they believe that the power to cut off utilities is the power to destroy the NSA’s ability to operate — the NSA’s “massive supercomputers monitoring your personal information are water-cooled. They can’t function without the resources to keep them at operating temperature. That water is scheduled to be provided by the Jordan Valley River Conservancy District, ‘a political subdivision of the state of Utah.’”
Don’t doubt for a minute that, if the Tenth Amendment Center succeeds in establishing a precedent for nullification-via-power-outages, they will immediately deploy this and similar tactics to implement other parts of their sweeping libertarian agency. Some of their other initiatives include bills purporting to nullify federal gun laws and the Affordable Care Act, as well as a truly surreal proposal to undermine the Federal Reserve by requiring citizens to pay their state taxes in gold or silver.
Nor are these the least of the Tenth Amendment Center’s ambitions. A resolution introduced in the New Hampshire legislature and pushed by the Center lays out an expansive list of potential federal laws that it objects to on constitutional grounds — one of them is “prohibitions of type or quantity of arms or ammunition” — and then claims that the Constitution shall become null and void if the federal government enacts any of the laws the resolution deems objectionable, and “all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually.”
The Tenth Amendment Center, in other words, is not simply distrustful of centralized power. They fear the federal government with such pathological intensity that they’ve actually suggested dissolving the Union in its entirety if Congress, the President or the federal judiciary takes any action that violates their idiosyncratic view of the Constitution. Their position on states’ rights makes John C. Calhoun look like a moderate.
So however attractive reining in the NSA this way might seem, it’s a Trojan Horse: a legal strategy that has the potential to big down the major federal accomplishments liberals most deeply cherish. Good thing the depower bills are unlikely to pass in any state. Regardless, however, this incident tells us something important about the various proposals for a left-libertarian alliance to rein the security state you see bandied about.
Realistically, that’s the alliance you’d need you take serious, nationwide action on spying outside of the executive branch; see the vote count on Rep. Justin Amash (R-MI)’s just-barely defeated bill to end NSA metadata collection. It’s the same coalition that could help accomplish worthy goals like reforming federal drug laws or racist prison sentencing guidelines.
On issues like those — where the policy fix is legally simple, and the goals are fully shared — the left-libertarian alliance has the potential to do a lot of good. But the state-level drive to turn off the NSA’s lights demonstrates the limits of this marriage. Lawmaking necessarily sets precedents. In some cases, those precedents come from the judiciary — giving official sanction to tactics once acknowledged to be unconstitutional. But the mere act of enacting a law and getting away with it can normalize radical tactics as well. Hidden provisions of a law or the legal theory behind it can change the country as surely as the legislation’s intended end.
That means the more legally complicated a policy becomes, the less likely there’ll be any workable left-libertarian compromise to be had over it. Libertarians who endorse a constitutional theory that radically limits federal power will be happy to craft legislation consistent with that theory; liberals will find the implications of such a law repulsive. Conversely, even libertarians who might like the idea of providing everyone with health care in principle can’t get on board with the Affordable Care Act — the theory of federal power it relies on justifies too much for their tastes.
Any liberal-libertarian alliance, then, will necessarily be tactical and limited, or else one side will invariably lose out. With such fundamental disagreements, the center cannot hold, even on issues like NSA spying where the sides are broadly in agreement. Ideology, in very practical terms, matters.
Over 250 DC Women Expected to Participate in Grassroots Anti-Harassment Bike Event This Saturday, 10/19“19th Amendment Alleycat” will benefit local anti-street harassment group, Collective Action for Safe Spaces (CASS)
Washington, DC — This Saturday, October 19, over 250 women are expected to participate in “19th Amendment Alleycat,” or what might be the District’s first all-women alleycat. Organized by two women bikers who are active in the city’s cycling community, the grassroots event aims to help women feel comfortable and confident on the DC streets, especially when faced with public sexual harassment. The event offers a unique spin on alleycats, or “urban checkpoint races” which are similar to scavenger hunts and are traditionally dominated by men. Registration is $5 and benefits Collective Action for Safe Spaces (CASS), a local grassroots group that works to empower people in the DC metropolitan area to build a community free from public sexual harassment and assault.
Less about speed and more about strategy, the 19th Amendment Alleycat will include checkpoints throughout the city that center around events and locations related to DC’s role in the women’s rights movement. Participants will also be able to enter a raffle to win prizes from a range of sponsors.Male allies are encouraged to volunteer at check-points and join participants at the finish for a raffle (see raffle sponsors below) and an official after party.
“The 19th Amendment Alleycat aims to help raise awareness and foster dialogue about public sexual harassment, which is a widespread problem that severely limits women’s safety and restricts their mobility,” said CASS’s founder and executive director, Chai Shenoy. A study by CASS conducted this summer found that 90 percent of respondents report experiencing public sexual harassment in DC, including verbal harassment, leering, stalking and groping. “Since CASS was founded in 2009, we’ve received hundreds of stories of street harassment faced by DC residents, including by female bikers,” said Shenoy, pointing to stories of women being forced to change their bike routes to avoid sexual harassment, fearing sexual assaults along local bike trails and being stalked and dangerously harassed by strangers in cars. The event comes exactly one week after a similar all-women’s cycling event was held in Cairo, Egypt, in response to public sexual harassment.
In preparation for the DC alleycat, CASS collected stories of sexual harassment faced by women cyclists, as well as statements on how biking helps women feel empowered. “At the same time that women cyclists often face street harassment, biking can be very empowering, and we look forward to women reclaiming the streets of DC this Saturday,” said Shenoy.
Sponsors and those donating items and raffle prizes to the 19th Amendment Alleycat include: Retail: All-City Cycle, Anhaica Bag Works, Ass Savers, Fabric Horse, Fiks:Reflective, Harlot Clothing Co., Knog, Kozie Prery, Oury Grips USA, Po Campo, Pure Fix Cycles, Road Runner Bags, Rockinoggins, Vaya Bags; Local Bike Shops: BicycleSPACE, CycleLife USA, Proteus Bicycles, The Bike Rack, Velocity Bicycle, Cooperative; Food and Bev: Honest Tea, KIND Bars; With support from: The Bike House, WABA Women & Bicycles.
The 19th Amendment Alleycat will begin at 2:00pm Saturday, October 19th, at Meridian Hill Park in NW DC. The event will last approximately two hours and will culminate with an official after party. Interested parties should RSVP on Facebook. More information can be found on CASS’s website: www.collectiveactiondc.org.
Founded in 2009 as HollaBackDC!, Collective Action for Safe Spaces (CASS) works to empower people in the DC metropolitan area to build a community free from public sexual harassment and assault. It does this through both online and offline activism, including workshops, innovative direct services, policy advocacy, and community outreach. Volunteer-led and -run, CASS utilizes the creativity and energy of the DC community to further its mission and vision. Follow CASS on Facebook and on Twitter.
I’m writing now with a brief update to share some of the top level take aways, especially for the benefit of those cc’d who were not able to attend.
Louise from the local Restore the Fourth (RTF) network is compiling a listserve including everyone who was here last night. Please watch for her email — and if you weren’t here last night but would like to be included, please contact her at firstname.lastname@example.org.
RTF is getting its ducks in a row across the country, and should have more final information about the actions they’re coordinating across the country in the next few days. Please monitor http://www.restorethefourth.net/ for updates.
Each of your respective groups are invited to join BORDC and others in co-sponsoring the July 4 rally in DC and others around the country initiated by RTF. Contact Nathan White email@example.com if your org is in a position to do so. To assist your due diligence, Nathan will circulate RTF’s press materials for everyone’s reference, but I’d encourage anyone who has potential concerns to focus on whatever analysis will unite your organization since RTF is more a decentralized community united by a common set of broad principles than an organization with a specific defined platform.
Don’t forget that there are two actions planned for Thursday, July 4 in DC, including the exciting bike bloc action starting in Anacostia.
Finally, a brief personal reflection: I often struggle with disillusion in the face of the national security state. I’ve been working for over a decade on building resistance to the Washington alphabet soup (eg FBI, NSA, CIA, etc), and particularly for the last five years on bringing libertarians and progressives together. Needless to say, that struggle has remained unsuccessful despite a ton of passion and energy from thousands of people. Everyone’s willingness last night to set aside our respective differences and focus on our issues of common concern was not only much appreciated, but also downright inspiring. I noticed that everyone in the room last night met new allies, and I can’t wait to see where the many possibilities lead!
In her inane response to Senator Ted Cruz she said she had been a “Senator for 20 years, a mayor, and had seen the bodies of people shot with these weapons,” referring to her early career when she replaced a San Fracisco mayor shot and killed by a deranged government official.
But Mayor George Moscone was shot by councilman Dan White with a .38 revolver. Not an assault weapon.
After his disagreement with Milk over the proposed rehab center, White frequently clashed with Milk as well as other members of the board. On November 10, 1978, White resigned his seat as supervisor. The reasons he cited were his dissatisfaction with what he saw as the corrupt inner-workings of San Francisco city politics, as well as the difficulty in making a living without a police officer’s or firefighter’s salary, jobs he could not hold legally while serving as supervisor. White had opened a baked-potato stand at Pier 39, which failed to become profitable. He reversed his resignation on November 14, 1978 after his supporters lobbied him to seek appointment from George Moscone.
Moscone initially agreed to White’s request, but later refused the appointment at the urging of Milk and others. On November 27, 1978, White visited San Francisco City Hall with the later-declared intention of killing not only Moscone and Milk, but also two other San Francisco politicians, California Assembly Speaker and later S.F. mayor Willie Brown, and Supervisor Carol Ruth Silver, both of whom he also blamed for lobbying Moscone not to re-appoint him. He arrived that day by climbing through a first-floor window on the side of City Hall carrying a .38 revolver and 10 rounds of ammunition. By entering the building through the window, White was able to circumvent the recently installed metal detectors. After entering Moscone’s office, White pleaded to be re-instated as supervisor, but Moscone said no. White then killed Moscone by shooting him in the shoulder and chest, and twice in the head. He then walked to the other side of City Hall to Milk’s office, reloaded the gun, and fatally shot Milk five times, the final two shots fired with the gun’s barrel touching Milk’s skull, according to the medical examiner. White then fled City Hall, turning himself in at the San Francisco’s Northern Police Station where he had been a police officer. While being interviewed by investigators, White recorded a tearful confession, stating, “I just shot him.”